Case Note & Summary
The appellant, Pralhad Ganpat Salgar, filed a Testamentary Suit No. 173 of 2017 seeking probate of a Will dated 07.04.2007 allegedly executed by the respondent's deceased father. The respondent, Sunil Dilip Kakod, filed Notice of Motion No. 228 of 2017 seeking dismissal of the suit under Section 281 of the Indian Succession Act, 1925, on the ground that the appellant had not filed the affidavit of any attesting witness along with the petition. The learned Single Judge allowed the motion and dismissed the suit. The appellant appealed to the Division Bench. The Division Bench, after hearing both sides, held that the requirement under Section 281 is mandatory and that the petition was rightly dismissed. The appeal was dismissed with no order as to costs.
Headnote
A) Succession Law - Probate - Mandatory Verification - Section 281 Indian Succession Act, 1925 - The appellant filed a probate petition without the affidavit of any attesting witness to the Will. The respondent sought dismissal under Section 281. The Single Judge dismissed the petition, and the Division Bench upheld the order, holding that the requirement of verification by at least one attesting witness is mandatory and non-compliance leads to dismissal. (Paras 2-5)
Issue of Consideration
Whether the failure to file an affidavit of an attesting witness along with the probate petition, as required under Section 281 of the Indian Succession Act, 1925, renders the petition liable to be dismissed.
Final Decision
The Division Bench dismissed the appeal, upholding the order of the Single Judge dismissing the Testamentary Suit for non-compliance with Section 281 of the Indian Succession Act, 1925. No order as to costs.
Law Points
- Mandatory compliance with Section 281 of Indian Succession Act
- 1925
- Verification by at least one attesting witness
- Dismissal of probate petition for non-compliance
- No discretion to condone non-compliance
Case Details
2019 LawText (BOM) (01) 182
Appeal No. 378 of 2018 in Notice of Motion No. 228 of 2017 in Testamentary Suit No. 173 of 2017
Naresh H. Patil, C.J., N.M. Jamdar, J.
Mr. Vishal Kanade a/w. Mr. Rohan Savant I/b. Sanjay Shivram Gawde for the Appellant, Mr. Tejas Vora a/w. Mr. D.R. Mishra, Mr. Sagar Kaskar & Mr. Sagar Sheth for the Respondent
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Nature of Litigation
Appeal against order dismissing Testamentary Suit for probate for non-compliance with Section 281 of Indian Succession Act, 1925.
Remedy Sought
Appellant sought to set aside the order of the Single Judge dismissing the Testamentary Suit.
Filing Reason
Appellant filed probate petition without affidavit of attesting witness as required under Section 281.
Previous Decisions
Single Judge dismissed the Testamentary Suit on the ground that the petition was not verified by at least one attesting witness.
Issues
Whether the failure to file an affidavit of an attesting witness along with the probate petition, as required under Section 281 of the Indian Succession Act, 1925, renders the petition liable to be dismissed.
Submissions/Arguments
Appellant argued that the requirement of verification by attesting witness is not mandatory and the petition should not be dismissed.
Respondent argued that Section 281 is mandatory and non-compliance warrants dismissal.
Ratio Decidendi
The requirement under Section 281 of the Indian Succession Act, 1925, that a probate petition be verified by at least one attesting witness to the Will is mandatory. Non-compliance renders the petition liable to be dismissed.
Judgment Excerpts
The Respondent herein pleaded in the affidavit in support of Notice of Motion that as the Appellant herein has failed to comply with the mandatory provisions of Section 281 of Indian Succession Act, 1925, the Probate Petition be dismissed.
It is settled position in law that in the absence of the verification by at least one witness to the Will, the Petition shall be liable to be dismissed for non-compliance of the mandatory provisions of Section 281 of the Indian Succession Act, 1925.
Procedural History
Appellant filed Testamentary Suit No. 173 of 2017 for probate. Respondent filed Notice of Motion No. 228 of 2017 seeking dismissal under Section 281. Single Judge allowed the motion and dismissed the suit. Appellant filed Appeal No. 378 of 2018 before the Division Bench, which was dismissed.
Acts & Sections
- Indian Succession Act, 1925: Section 281
